P. v. Coombs
Filed 7/23/12 P. v.
Coombs CA3
NOT
TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Siskiyou)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA DAVID COOMBS,
Defendant and Appellant.
C067063
(Super.
Ct. No. MCYKCRBF 10-0841)
A jury found
defendant Joshua David Coombs guilty of felony
(a).) Defendant appeals, contending he
received constitutionally ineffective counsel due to counsel’s failure to
properly object to the admission of evidence of his prior marijuana sales. He also requests this court
reviewed in camera by the trial court.
We have reviewed the material and affirm the judgment.
BACKGROUND
Agent Monty
Cervelli, a special agent with the California Department of Justice, conducted
a “controlled buy” operation, using an informant named Michael Craig. Craig signed a contract with the
County District Attorney’s office, agreeing to produce 10 prosecutable
cases in exchange for dismissal of charges pending against him for being a
felon in possession of a firearm and ammunition. As part of his informant training, Craig was
admonished by law enforcement on the definition of entrapment.
During the
program, law enforcement paid for Craig’s operation costs, including food,
transportation, and lodging. The
operation lasted approximately two months.
At the conclusion of the operation, Craig had provided 14 controlled
marijuana buys, six controlled methamphetamine buys, and one controlled
hydrocodone buy. Law enforcement then
paid for a plane ticket for Craig to leave the area.
Defendant Joshua
David Coombs was one of the subjects investigated during the operation. Craig had known defendant since 2004 and saw
him approximately once a month. Craig
called defendant and arranged to meet so defendant could sell him
marijuana. Craig had to cancel the first
arranged meeting because Agent Cervelli and his partner were not
available.
On June 1, 2010, Craig called defendant
again and asked to buy $50 of “pot.”
Defendant said “okay” and they arranged to meet at Carl’s Jr. restaurant
where defendant worked. Defendant told
Craig he would have another person give him the marijuana because he did not have
any on him at the moment.
Earlier on June 1, 2010, defendant had asked his
coworker, Steven Mowatt, to lend him some money for gas. Mowatt did not have any money to lend. A short time later, defendant asked Mowatt if
he had any marijuana that he could sell.
Defendant suggested Mowatt allow defendant to sell the marijuana to a
friend and then borrow the money from the sale until payday when he would pay
Mowatt back. Defendant told Mowatt that
the friend had been “bugging” him for awhile.
Mowatt agreed to defendant’s plan.
Before the buy,
Agent Cervelli met Craig, searched him and his vehicle, fitted him with an
audio-video recording device, and provided him with $50 to buy the
marijuana. Agent Cervelli and another
agent then followed Craig to the buy location to observe the transaction. Craig arrived at Carl’s Jr. around 7:00 p.m. and went into the restaurant to
signal defendant. Defendant indicated to
meet him behind the restaurant so Craig walked around to the back where he met
defendant and Mowatt. Defendant
introduced the two men and then Mowatt handed Craig a white plastic bag. Defendant nodded to Craig and Craig handed
Mowatt the buy money. Mowatt then went
back inside the restaurant and handed defendant the $50. The white plastic bag contained 9.35 grams of
marijuana.
Craig estimated he
called defendant a total of approximately 10 times throughout the operation --
some of those times leaving messages on his answering machine. Craig has two prior felony convictions and a
misdemeanor conviction, sustained approximately 10 years earlier. Mowatt, who also testified at trial, had been
facing two felony charges for selling marijuana. In exchange for his truthful testimony (as
judged by the trial court), it was agreed he would serve no more than 60 days
in county jail.
Defendant’s
fiancée testified that Craig had called “constantly.” He would call her cell phone (as that was the
only phone in the household), starting in the morning and continuing “all day.” She began to send his calls straight to
voicemail, but sometimes she would answer and talk to him just to get him to
stop calling. She claimed he called
between three and four times a day, at least every other day, for a period of
about a month. At the time, she did not
know what he was calling about.
Defendant
testified that, about a month before June 1, 2010, he talked to Craig in the
parking lot of a McDonald’s. Craig asked
him if he knew where to get marijuana and defendant told him he did not. Craig pressed him to try to find some and he
repeated to Craig that he had no way to get any. Craig then started calling defendant’s
fiancée and workplace, leaving messages to call him back. On the occasions defendant called him back,
Craig would ask him again to sell him marijuana. Defendant told him he did not know anyone or
anywhere from which to get it and he did not sell it himself. Craig continued to call.
Finally, defendant
“got pretty fed up with the badgering and constant calling” so he arranged to
have Craig meet a friend named “Shane” who had a “215 card.”
defendant told him he would not arrange another one. Nonetheless, Craig called him at work on June
1, 2010, and asked him to “set something up.”
Defendant told him no. Later that
day, he tried to borrow $20 for gas from Mowatt but Mowatt did not have any
cash. Defendant knew Mowatt had a “215
card” and suggested Mowatt sell some marijuana to Craig and let him borrow the
money from the sale. Defendant then
called Craig and told him to come to Carl’s Jr. where he intended to introduce
Craig to Mowatt. He assumed they would
make their transaction later that day.
When Craig arrived, he introduced him to Mowatt and then went inside the
restaurant. He did not know Mowatt had
the marijuana in his possession at the time and did not witness the
transaction.
During rebuttal,
Craig testified that neither defendant nor defendant’s fiancée had told him to
stop calling. He had purchased marijuana
from defendant on approximately 12 previous occasions. Agent Cervelli testified that Craig had been
given specific instructions requiring him to break off contact with a subject
if that subject did not want to deal with him.
In fact, it was part of the contract.
Agent Cervelli had monitored some of Craig’s contacts with other
subjects and never noted Craig to be inappropriate.
DISCUSSION
I
Defendant contends
his trial counsel was constitutionally ineffective because he failed to object
to the evidence of defendant’s prior marijuana sales pursuant to Evidence Code
section 352.
title="">[2] He argues that, had counsel so objected, the
evidence would have been excluded as unduly prejudicial and it is reasonably
probable he would have then received a more favorable outcome. We reject his contention.
“To prevail on a
claim of ineffective assistance of counsel, a defendant ‘“must establish not
only deficient performance, i.e., representation below an objective standard of
reasonableness, but also resultant prejudice.”’” (People v. Maury (2003) 30 Cal.4th
342, 389.) “[P]rejudice must be
affirmatively proved; the record must demonstrate ‘a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.’” (Ibid., quoting Strickland
v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698].)
During opening
statements, defense counsel stated that defendant had never sold marijuana
before. During Agent Cervelli’s
testimony, he mentioned that Craig had informed him that he had purchased
marijuana from defendant in the past.
Defense counsel objected because the statement had not been disclosed
during discovery. The prosecutor
explained that she had not planned to introduce that evidence in her
case-in-chief. The trial court struck
the testimony and instructed the jury not to consider it for any purpose.
Thereafter,
defendant testified on his own behalf.
During direct examination, he testified that had repeatedly told Craig
he could not get any marijuana for him and did not sell it himself, but Craig
continued to ask. On cross-examination,
defendant “corrected” the prosecutor’s statement that Mowatt had arrived with
$50 worth of marijuana (the amount Craig had asked for) by stating, “Well, if
you want to get technical, 9.35 grams is about a hundred dollars worth of
marijuana.” The prosecutor asked
defendant how he knew that and defendant replied he knew that from talking to
people and “just being on the street.”
The prosecutor then asked defendant if he had sold marijuana before the
date of the charged offense. Defense
counsel objected on relevance grounds.
The trial court initially sustained the objection but, after an offer of
proof that defendant would answer the question, “No, I have not,” and argument
from the prosecutor regarding its admissibility for impeachment, the court
reconsidered its ruling and allowed the testimony.
in the past. In the prosecution’s
rebuttal case, Craig testified that defendant had previously sold marijuana to
him on approximately 12 occasions and he had personally seen defendant sell it
to others on four or five occasions. Agent
Cervelli testified that Craig told him that, between he and his wife, they had
purchased marijuana from defendant between 20 and 50 times.
Defendant argues
that his counsel’s failure to further object to the evidence of his prior
marijuana sales under section 352 on the grounds that its prejudicial effect
outweighed any probative value constituted deficient representation. In making his argument, he assumes, with
little analysis that, had counsel made the objection, the evidence would have
been excluded. However, evidence of his
prior marijuana sales was highly relevant and not unduly prejudicial;
therefore, any such section 352 objection would have most likely been
futile.
“‘Relevant
evidence’ means evidence, including evidence relevant to the credibility of a
witness or hearsay declarant, having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.” (§ 210.) Such evidence is admissible. (§ 351.)
A trial court may, however, in its discretion, exclude otherwise relevant
evidence under section 352 if its probative value is substantially outweighed
by the probability that admission will unduly consume time, create a
substantial danger of undue prejudice, confuse the issues, or mislead the jury.
Here, defendant
asserted the defense of entrapment, for which he had the
testimony and that of his fiancée.
Defendant provided an explanation for his behavior which included a
claim that Craig was “harassing” him despite his repeated statements that he
did not know where to get marijuana and that he does not sell marijuana. This testimony directly contradicted Craig’s
testimony, rendering credibility pivotal.
If the jury believed defendant’s testimony, it could conclude that
Craig’s actions in continuing to contact defendant (even if it was not quite as
frequently as defendant’s girlfriend testified) constituted “badgering,
persuasion by . . . coaxing, repeated and insistent requests, or an appeal to
friendship or sympathy” which the jury was instructed could be examples of
entrapment. Thus, evidence that
defendant was untruthful in his testimony about the fact that he did not know
where to get marijuana and that he had, in fact, sold marijuana to Craig on
numerous previous occasions, was clearly relevant to an evaluation of
defendant’s credibility and the legitimacy of his version of the events.
“‘Unless the
dangers of undue prejudice, confusion, or time consumption “‘substantially
outweigh’” the probative value of relevant evidence, a section 352 objection
should fail. [Citation.] “‘The
“prejudice” referred to in Evidence Code section 352 applies to evidence
bias against the defendant as an individual and which has very little
effect on the issues . . . .”’ In other
words, evidence should be excluded as unduly prejudicial when it is of such
nature as to inflame the emotions of the jury, motivating them to use the
information, not to logically evaluate the point upon which it is relevant, but
to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is
unduly prejudicial because of the substantial likelihood the jury will use it
for an illegitimate purpose.’
[Citation.]” (
439, italics added.)
Defendant does not
argue that evidence of his prior marijuana sales uniquely tends to evoke an
emotional bias or reaction in lay persons, rendering the evidence unduly
prejudicial. Instead, defendant relies
on a statement made by the California Supreme Court regarding the prejudicial
nature of such evidence and argues the evidence “eviscerated” his defense of
entrapment.
In
the court explained that, unlike federal law and some other jurisdictions, in
California entrapment focuses upon police conduct and not the defendant’s
predisposition. The Barraza court explained:
“The principle currently applied in California represents a hybrid
position, fusing elements of both the subjective and objective theories of
entrapment. In People v. Benford (1959) 53 Cal.2d 1, 9, this court
unanimously embraced the public policy/deterrence rationale that Justices
Roberts and Frankfurter had so persuasively urged. In doing so, we ruled inadmissible on the
issue of entrapment the most prejudicial inquiries that are allowed under the
subjective theory, i.e., evidence that the defendant ‘had previously committed
similar crimes or had the reputation of being engaged in the commission of such
crimes or was suspected by the police of criminal
activities . . . .’
(Id., at p. 11.)” (People
v. Barraza, supra, at p. 688, fn. omitted.)
Thus, “matters such as the character of the suspect, his predisposition
to commit the offense, and his subjective intent are irrelevant.” (Id. at
pp. 690–691, fn. omitted.)
position, establish that such evidence, which is inadmissible on the issue of
entrapment, is “unduly prejudicial” for purposes of section 352 when offered
for otherwise admissible purposes such as impeachment. Moreover, the risk of undue prejudice was
significantly diminished by the trial court’s jury instructions.
The trial court
instructed the jury on the defense of entrapment, informing the jury that “[a]
person is entrapped if a law enforcement officer or his or her agent engaged in
conduct that would cause a normally law-abiding person to commit the
crime.” The court’s further instructions
told the jury, inter alia, that in evaluating the defense, it would focus
primarily on the conduct of the officer or agent, and specifically instructed
the jury “when deciding whether the defendant was entrapped, consider what a
normally law-abiding person would have done in this situation. Do not
consider the defendant’s particular intentions or character or whether the
defendant had a predisposition to commit the crime.” (Italics added.) The court also instructed the jury that it
must follow the law and instructions as provided by the court and instructed
the jury, before and after the evidentiary phase of trial, with the standard
cautionary instruction not to let bias, sympathy, prejudice, or public opinion
influence its decision.
Jurors are
routinely instructed to limit the purposes for which evidence may be
considered, and we presume they are able to understand and follow such
instructions. (People
v. Yeoman (2003) 31 Cal.4th 93, 139.) Indeed,
the presumption that jurors understand and follow instructions is “[t]he
crucial assumption underlying our constitutional system of trial by jury.” (People
v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) We are presented with no reason to believe
that the jurors in this case were unable to follow the instructions here.
In sum, the record
does not indicate that, but for trial counsel’s failure to object to the
challenged evidence pursuant to section 352, the evidence would have been
excluded. The potential prejudice from
the evidence did not substantially outweigh its probative value, especially in
light of the entrapment and standard cautionary jury instructions. Thus, defendant has not established he
received ineffective assistance of counsel.
II
During jury
selection, defense counsel brought a potential discovery issue to the trial
court’s attention. Agent Cervelli had
taken notes in a case management notebook during the controlled buy
operation. The prosecution had provided
defense counsel with a detailed list documenting several cash payments made to
Craig during the buy operation but had not provided the case management
notebook. The parties disagreed as to
whether the notebook was discoverable.
With the parties’
agreement, the trial court conducted an in camera review of the notebook,
pursuant to Penal Code section 1054.7.
Upon completion of the in camera review, the trial court ordered a
two-page letter disclosed to defendant but otherwise ruled that the prosecution
had complied with disclosure requirements.
The trial court ordered the transcript of the in camera review and the
undisclosed portions of the case management notebook sealed.
Defendant requests
this court independently review the
sealed materials for correctness of the trial court’s ruling. The People have no objection to this
requested procedure.
We have reviewed
the records and find no error in the trial court’s ruling, as the sealed
materials do not contain any material, undiscovered documents. (See People
v. Martinez (2009) 47 Cal.4th 399, 453-454; People v. Zambrano (2007) 41 Cal.4th 1082, 1132-1133, disapproved
on another point in People v. Doolin,
supra, 45 Cal.4th at p. 421, fn.
22.)
DISPOSITION
The judgment is affirmed.
NICHOLSON , Acting P. J.
We concur:
ROBIE , J.
BUTZ , J.
name="_ftn1" title="">[1] A “215 card” refers to the government card
issued under the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5; also known as
Prop. 215).
name="_ftn2" title="">[2] Undesignated statutory references are to the
Evidence Code.
